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On January 17, 2008, Jonathan Allan Klein won a defense verdict in a wrongful death pharmacy malpractice case venued in U.S. District Court for the District of Montana (Missoula division.) In the case, plaintiffs contended that Safeway pharmacy negligently filled three prescriptions, for Clozapine, Accupril and Hydrochlrothiazide, despite a lack of published interactions or contraindications between the drugs. Mr. Klein introduced evidence from a retail standard of care expert, as well as from a psychiatric pharmacist, that the pharmacy was not negligent, and complied with the standard of care, because there were no contraindications or drug interactions published in the package inserts, nor found in the published literature. The jury returned a unanimous 7-0 decision in only 75 minutes.
Jonathan Allan Klein and Annmarie Liermann have recently spearheaded a group of concerned lawyers, insurance executives and corporate risk managers in attempting to address problems with Medicare’s lien rights and difficulties in resolving cases involving Medicare payments. This group prepared a detailed white paper on the issues, and is currently seeking people interested in lobbying, negotiating or educating people on Medicare’s Secondary Payer rights. Contact Jonathan with questions or interest.
Successfully won motion for summary judgment in Lipcowitz v. Rite Aid employment matter in San Diego County Superior Court. Trial court agreed that plaintiff sought to enforce illegal and unenforceable agreement to work more than hours permitted as pharmacist under California law. See attached Order.
In Hull v. Safeway, Court of Appeals affirmed Order granting demurrer on Safeway's behalf, holding that plaintiff who admitted he did not ingest medication could not sue for damages for inability to read information on OTC box of cold medication. See attached Order.
In Armstrong v. Rite Aid, et al., the U.S. District Court granted Rite Aid's motion to dismiss on grounds plaintiff who admitted to taking photographs of his own marijuana plants to local drug store for developing could not assert causes of action related to violation of rights to privacy when store employees gave photographs to the police. See Attached Order.
On behalf of Safeway, Jonathan Allan Klein and Annmarie Liermann recently obtained an Order sustaining a Demurrer filed on Safeway's behalf in a Trazodone case filed in Alameda County, California. The Court agreed with our arguments, in their entirety, that California pharmacies do not have a general duty to warn of the side effects of prescriptions (absent a special contraindication, or failure to follow the instructions on the prescription). The Court agreed with our analysis of out-of-state authority, and the application of the learned intermediary doctrine, in declining to establish a new duty of care on behalf of pharmacies and pharmacists. To counsel's knowledge, this is the first decision in California explicitly holding that pharmacies are protected by the learned intermediary doctrine while sustaining a demurrer to a duty to warn claim. A copy of the Order is attached.
Discovery That Is Based Only On An Apparent Conflict Of Interest Is Not Allowed In An ERISA Action: In the Northern District Court matter Litt v. Paul Revere, No. C 04-0561 PJH, attorney John Burnite defeated plaintiff's motion to undertake discovery in an ERISA action governed by the abuse of discretion standard. In a comprehensive order, United States District Court Judge Phyllis J. Hamilton held that the existence of an apparent conflict of interest is not enough to warrant the far-reaching discovery sought by plaintiff. The Court concluded that there is "no automatic entitlement to discovery in order to establish that a plaintiff is entitled to de novo review, where the plaintiff has made no showing that a conflict exists, beyond the apparent conflict between the insurer's role as insurer and as claim administrator." The Court's order can be found at Litt vs. Paul Revere Life Insurance.
After a two-week trial, Kelly Hockel & Klein obtained a verdict in San Francisco Superior Court in favor of The Northwestern Mutual Life Insurance Company in which the court upheld the company’s rescission of an individual disability policy based on fraud by the insured. The court’s finding of fraud was based primarily on the admissions by the insured during cross-examination. The insured’s own testimony, in combination with the testimony of numerous percipient witnesses, caused the court to conclude that Northwestern had proven by clear and convincing evidence that the insured had committed fraud in securing the disability policy. The company did an outstanding job investigating the claim and the discovery undertaken in the action developed a number of trial themes that the court concluded established fraud on the part of the insured. The court’s opinion can be found at Isch v. Northwestern PDF 331. The insured’s causes of action for bad faith and fraud had been thrown out on summary judgment prior to trial.
Thomas M. Herlihy and Jonathan Allan Klein were selected as Northern California "Super Lawyers" by San Francisco magazine in its 2005, 2006 and 2007 editions. "Super Lawyers" is an annual listing of outstanding lawyers who have attained a high degree of peer recognition and professional achievement.
Jonathan Allan Klein spoke at the 16th Annual Fall Meeting of the American Society for Pharmacy Law ("ASPL") held in conjunction with the National Association of Chain Drug Stores ("NACDS"). Mr. Klein's presentation was "pharmacy malpractice litigation", and reviewed issues including the evolving duties to warn, liability for dispensing counterfeits, strict liability, and an update on recent malpractice cases. Mr. Klein also included a discussion of the use of expert and percipient pharmacist witnesses in pharmacy cases. Go to www.aspl.org for further details. A copy of Mr. Klein's presentation is attached here.
Jonathan Allan Klein was selected one of America's Best Lawyers in 2005 by SkyRadio -- heard nationwide on American, Delta, United, US Airways, America West and Northwest Airlines. In an interview heard on those airlines, Mr. Klein discusses recent trends in pharmacy and pharmacist liability for the sale of prescription drugs.
Jonathan Allan Klein acting as coordinating counsel for all pharmacy retailers in the California Baycol proceedings, secured dismissal of all pharmacies on the grounds that plaintiffs could not allege products liability or negligence causes of action for mere dispensing of prescriptions in California (In Re: Baycol Litigation). Similarly, Mr. Klein won summary judgment in favor of a national drug chain in a case arising out of prescription for Trazadone anti-depressant. Plaintiff contended that pharmacy failed to warn; trial court agreed that pharmacy had no duty to warn under circumstances of particular case. Successfully represented pharmacy on appeal before Third District Court of Appeals (Hooper v. Rite Aid.)
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